REZA & SADIR

[2015] FamCA 773

FAMILY COURT OF AUSTRALIA

REZA & SADIR [2015] FamCA 773

FAMILY LAW – CHILDREN – Interim parenting – Best interests of the children – Parental responsibility – Allegations of physical and psychological harm – Where equal time is not considered in the children’s best interests – With whom the children should live and what time the children should spend with the non-residential parent –  Whether there is a risk of harm to the children

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC

Deiter & Deiter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Reza

RESPONDENT: Ms Sadir

INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

FILE NUMBER: SYC 6093 of 2014

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 10 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Norton Law Group

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Kellie Hardie Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins of Philip A Wilkins & Associates

Orders Pending Further Order

1. The mother have sole parental responsibility for B (“B”) born … 2002, C (“C”) born … 2006 and D (“D”) born … 2010 namely (“the children”).

2. In relation to the operation of Order 1 the mother will actively consult with the father in relation to all aspects of parental responsibility.

3. The father has responsibility for decisions as to the children’s day-to-day care, welfare and development during periods when they are spending time with him and the mother has that responsibility at all other times.

4. The children are to live with the mother.

5. The children are to spend time with the father as follows:

   5.1During school term each alternate weekend from 5.00pm Friday to 9.00am Monday.

   5.2For one half of each New South Wales gazetted school holiday periods, being the first half in odd numbered years commencing in the year 2015 and each alternate year thereafter, and the second half in even numbered years commencing in the year 2016 and each alternate year thereafter.

   5.3The “first half” of a school period means from 5.00pm on the last day of the school term until 5.00pm on the day falling closes to the midpoint of the holiday period and the “second half” of a school holiday period means from 5.00pm on the day falling closest to the midpoint of the school holiday period until 5.00pm on the last day of the school holiday period.

6. For the purposes of the father spending time with the children, the children will be changed over at school or alternatively on non-school days at E Town Interrelate Contact Centre.

7. The parties have the following telephone communication / SKYPE (if the parties have the facilities) with the children when they are not in their care:-

   7.1Each Monday, Wednesday and Saturday from 6.00pm and 6.30pm, with the party who has the children in their care to initiate the phone call.

8. Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

9. Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven (7) days of such change occurring.

10. Within fourteen (14) days of the date of these Orders and within fourteen (14) days of the children’s subsequent enrolment at any school, the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each of the children’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

11. Within fourteen (14) days of the date of these Orders, the mother ensure the school is provided with the father’s contact details and that he is reflected on the school records as the children’s father and emergency contact.

12. The parties be restrained from travelling with the children overseas and the children’s passports be held in the safe custody of the mother’s solicitors.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reza & Sadir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6093  of 2014

Mr Reza 

Applicant

And

Ms Sadir      

Respondent

REASONS FOR JUDGMENT

Introduction

1. In parenting proceedings in relation to three children of a 14 year marriage each of the parents seeks interim orders.

2. The parenting arrangement that is currently in place is shared care on a week-about basis, which is not supported by orders.

3. The father proposes interim orders which would see the shared care arrangement continue for the two younger children, C, who is nine, and D, who is four. He proposes that the eldest child, B, who is 13, live with him and spend alternate weekends with the mother. Alternatively he proposes that all of the children live primarily with him and spend alternate weekends and half of the school holidays with the mother.

4. The mother contends that it is not in the best interests of any of the children for the current arrangement to continue. She proposes a parenting arrangement that would see the children live primarily with her and spend time with the father on alternate weekends and half of the school holiday periods.

5. The Independent Children’s Lawyer supports the current arrangement continuing until an Expert Report is available, which is expected later this year.

Background

1. The mother, who is 40, and the father, who is 48, are both health professionals of Country F heritage. They married in Country G in 2000.

2. B, their eldest son, who is 13, was born in 2002. C, a second son, was born in 2006.

3. In February 2007 the father moved to Country H where he worked as a health professional. From this time the mother lived with the two children in Darwin where she was also employed as a medical practitioner.

4. In December 2007 the father took up a position in a regional town in NSW but the mother and children continued to live in Darwin until April 2008. After that time she and the children lived with father.

5. In 2009, the parents obtained permanent residency in Australia and built a family home in the regional NSW town where they both practiced as doctors.

6. In 2010 the third son, D, was born.

7. From around 2011, the mother says that the marriage relationship began to deteriorate, though as I understand it, this is disputed by the father.

8. In July 2012 the paternal grandparents came to Australia and lived with the family until January 2013.

9. In February 2013 the mother says she became aware of the father’s relationship with Ms I, a woman the father had met in Country H. The mother contends that the father told her that he had been through a form of religious marriage ceremony with Ms I and proposed for the three of them to live in a polygamous arrangement. Although the father denies that he went through a form of ceremony or proposed the polygamous arrangement, he does not deny that he has been for some time in a relationship with Ms I who he had met in Country H and who has lived with her children for some time in the same town as the father.

10. The mother says that the parents separated in February 2014 but the father initially remained in the family home with her and the children. She says the father assaulted her on 17 February and on the following day she made a complaint to police about the assault. She also says that when she returned home on 18 February the father again assaulted her in their home in the presence of the children. On 20 February 2014 the police obtained a provisional Apprehended Domestic Violence Order (ADVO) against the father for the protection of the mother which was made as a final order for 12 months by a Local Court on 5 March 2014.

11. The father moved out of the family home on 22 March 2014.  The parents subsequently came to an arrangement whereby the children are cared for week-about in the parents’ respective homes.  The mother contends that she had no alternative but to agree with this arrangement and it was forced upon her.

12. In September 2014, the father commenced these proceedings, initially in the Federal Circuit Court, but they were subsequently transferred to this Court.

13. B has been showing signs of psychological distress and disrupted behaviour, especially when in the company of his mother.

14. The parents make allegations against one another in relation to the care of the children after separation which are matters of significant dispute between them.

15. In January 2015, the father took B to a psychologist without the consent of the mother or previously discussing the matter with the mother.

16. On 10 August 2015, Orders were made for the parents and B to participate in family therapy.

17. The parents and children were interviewed by a Family Consultant as part of the Child Responsive Program on 31 August 2015 and the Family Consultant’s memorandum was distributed to the parties on 10 September 2015.

The contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[2], a decision of the Full Court citing Deiter & Deiter[3].

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82)

3. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. There are many contested facts in this matter which cannot be resolved at the interim stage and which also do not give rise to concerns relating to a risk of harm to the children.  However, there are some matters in dispute which have particular relevance for allegations of risk in each of the parents’ households.  First, the mother alleges that the father has attempted to alienate the children, and in particular B, since at least February 2013 from when she first became aware of the father’s relationship with Ms I. Although the mother contends that the father was leading a duplicitous life from a much earlier stage, from February 2013 she says she was forced to accept a situation where the father moved between her household and that of Ms I.  The mother contends that the father has sought to strengthen the relationship between Ms I, her children and his children.  It is the mother’s case that the attempted alienation of the children against her and psychological harm of them commenced from at least this time and intensified after the actual separation in February 2014 and the shared care arrangement.

5. The mother also alleges that the father has perpetrated violence against her on a number of occasions which is a matter in dispute between the parties.  The mother says that the father began to become verbally abusive from around 2011 when their relationship began to deteriorate.  She says that this verbal abuse and aggression sometimes occurred in the presence of the children which caused her to become frightened.  The mother says that the threats against her escalated after she became aware of the nature of the father’s relationship with Ms I and that on one occasion the father spat in her face.  The mother also says that on a specific occasion in November 2013 the father hit her, pulled her ears and held her around the face in the course of an argument.

6. In early February 2014 the mother says that when she was ironing and the father became upset with her he took the iron from her hand and placed it close to her face and that she ran and locked herself in the bathroom in fear.

7. On 17 February 2014 the mother says that in the course of an argument in the car the father hit her with a closed fist four to six times in her jaw and that this was witnessed by the children. She said that she sustained an injury but did not seek medical attention as she did not wish to disclose the injury to any other doctor in the town in which they lived. She did, however, report this incident to police.  She says the following day the husband said “if you defy me in the future I will bash you” and approached her and held her face down onto a sofa with force and only stopped when she screamed. The mother said that this incident also occurred in the presence of the children and was the precipitating event for the separation.

8. The mother alleges that when police obtained a provisional ADVO against the father, two days later two police officers attended the family home to serve the order on the father. The mother says that initially the father was shocked that she had complained to police and then started to verbally abuse and threaten her and demanded she withdraw the ADVO which the mother refused to do. She says the father then told her that he would take the children from her by accusing her of harming them.

9. On 22 March 2014 the mother says that after a meeting with her solicitor the father took her phone from her and checked the call log. She says he also took her car keys and said that he could organise someone to throw acid on her face. She describes the father as irate and said that she was terrified and contacted her solicitor. She says “I understand then both legal representatives…met on 25 March 2014 and it was put to [the husband’s lawyer] that a complaint to police would be made if the incident was repeated and if [he] did not immediately vacate the home.” The mother says the father vacated the home that night.

10. In his affidavit the father says that from about 2011 the mother became distrusting of him and regularly accused him of having affairs. The father describes the mother as irrational and preoccupied.  The father says that he knew Ms I from 2007 when he was in Country H. The father does not say when the relationship with Ms I commenced but simply says that many of the mother’s assertions in relation to his relationship with Ms I are delusional. It is the father’s case that he formed a relationship Ms I (at an unspecified time) following the parents’ separation.

11. So far as the specific allegations concerning violence are concerned, in his affidavit the father denies all conduct “which could be described as aggressive”. He gives no alternate version of any of the specific events alleged by the mother and does not refer to the ADVO initially obtained on 20 February 2014 and made by consent on 5 March.

12. The father makes allegations that give rise to issue of a risk of harm in the mother’s care which are denied by the mother.  These can broadly be described as allegations of physical harm and psychological or emotional harm.

13. So far as physical harm is concerned, the father refers to an episode in about April 2014 when he “reported [the mother] to the police for aggressive behaviour towards the children including threatening B with a knife followed by a fist on B’s face”. It is not clear whether the father is asserting that this event occurred at around this time or that he first reported matters to police at this time. No police records were tendered on the interim application to assist in this regard. The father also annexes photographs of B’s mouth to his affidavit which he says show the child’s cut lip, and appear to be related to the allegation.  I am unable to observe such an injury on the annexed photographs.

14. So far as psychological harm is concerned, the father says that the level of hostility that B is currently showing towards the mother is indicative of psychological distress that arises from the mother’s inability to appropriately care for him.

15. The father alleges that the mother is verbally abusive towards B and is unable to manage.  He also relates an incident in April 2015 when he says the mother dropped B in the street in the middle of nowhere and drove off and B contacted his father who was in Spain at the time by text message.  It appears that there is no dispute that on the same day an incident occurred when B and his mother were fighting in the car which almost caused a car accident.

16. The father also makes other complaints about the mother’s parenting capacity which include that she has videoed B’s behaviour and threatened to show the videos to other people.  He says that B has made a number of complaints to him about fights with his mother, and that B says he is scared of his mother and does not want to stay with her. As a result of a specific conversation to this effect on 25 March 2015, the father contacted police and asked them attend the mother’s home and conduct a welfare check. Apparently the police attended the mother’s home at 1:00am and B was found to be asleep and did not appear in any danger.

17. It is not in dispute between the parties that after the ADVO was made in March 2014 the father made a number of complaints to police about the mother. The mother does not give details of any of the incidents in her affidavit but refers to “at least seven false reports”.  The father presents these complaints as examples of poor parenting in which the mother is said to have assaulted B or verbally abused him or made him feel unsafe. The father does not suggest that police took action in relation to any of these complaints.

18. I am not in a position to make positive findings in relation to the numerous incidents recounted in each of the affidavits in relation to the mother’s irrational behaviour towards the children and B in particular, the father’s attempts to alienate the children and especially B from the mother and the mother’s allegations about violence perpetrated by the father. In my view there is some evidence consistent with each of the parents’ positions. The family consultant also observed that “the children have disclosed information contained in this assessment that supports some of the information provided by the parents and contradicts other information”.

19. However, the allegations made each parent against the other are matters which have a serious impact upon the wellbeing of the children so some assessment of the risk posed by each parent must be undertaken. As noted by the family consultant, the most significant issue at this stage is whether or not B is at risk of harm in the care of one or other of his parents.  In the view of the family consultant if an assessment shows that the mother’s allegations are correct and that the father “has either deliberately or inadvertently manipulated B to the point that he is acting out and making himself unsafe in his mother’s care” steps would be required to ensure that this does not continue. On the other hand, if the mother is found to have been physically and emotionally abusive of B so that he is at risk of harm in the mother’s care, steps would need to be taken to ensure that he is safe.

1. At this stage and bearing in mind the limitations of this assessment I am of the view that there is more objective evidence to support the mother’s allegations than the father’s. So far as family violence said to have been perpetrated by the father is concerned, I note that father makes only a very general denial of all conduct “which could be described as aggressive” whereas the mother provides specific detail of a number of incidents, one of which she referred to police. The mother also provides a specific account of the circumstances in which the ADVO was made for her protection and of the circumstances in which the father left the family home, which the father does not address in his affidavit.

2. Further, B told the Family Consultant that he saw his father hit his mother across the face while his father was driving and the Family Consultant said he appeared quite reluctant to tell her about this.  I regard this disclosure as likely to be reliable given B’s apparent alignment with his father and hostility towards his mother.  C also told the Family Consultant that he had seen his father hit his mother on two occasions.

3. So far as the father’s alleged influence over B is concerned, the father does not dispute that in March 2014, following the making of the ADVO he took B, who was then 12 to Country J where he spent at least some time alone in a hotel room while his father attended to professional matters.  It is also not in dispute that the father has made a number of complaints to police about the mother’s behaviour towards B but no police action has been taken. The father also does not dispute that he unilaterally took B to a psychologist without consultation with the mother.  It is also common ground that B has hit his mother on a number of occasions but presented to the Family Consultant as feeling badly about his conduct but also attempted to justify his actions within himself. B also expressed remarks to the Family Consultant that indicated a strong alignment with his father and a desire not to see his mother.

4. There were some other indicators in the Child Responsive Program memorandum that the father had sought to influence B. The Family Consultant reports that B told her that his father had told him “you have to remember” all of the things that the mother has done to him “for important interviews”.  B also reported to the Family Consultant that his father had spoken to him about issues before the Court.  C also told the Family Consultant that his father talks to B about what is happening in Court and he thinks B likes his father more than he likes his mother.

5. The father told the Family Consultant that he had spoken to B about the issues before the Court and in her opinion the father indicated “that he was not aware of the potentially manipulative and undermining nature of discussing such issues with [B].” The Family Consultant gave the example that the father said he had shown B tickets that he had booked for him to travel overseas prior to seeking the mother’s agreement. The father told the Family Consultant that when his more recent trip overseas came up he told B about the trip but told him there was no point booking him the ticket because his mother would not allow him to go. The Family Consultant was of the view that the father “appeared resistant to taking on-board feedback about how his actions may be harmful to [B] and the younger children”.

6. The father alleges that the mother has behaved erratically and is delusional indicating a possible issue with mental illness.  However, it is to be noted that neither parent raised issues of mental ill health with the Family Consultant.

7. For the reasons given, I am of the view that there is more objective or uncontested evidence to support the mother’s allegations which give rise to a risk of harm to the children such as that the father has perpetrated family violence against her and that he has sought to influence B in particular.  There is no corroborative evidence that the mother is suffering from a mental illness or is delusional and there is insufficient evidence to make positive findings that the mother has physically or psychologically harmed the children.  On this basis I am of the view that a preliminary assessment of the risk posed in each of the households indicates that it is more likely that the risk of harm arises in the care of the father than in the mother.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. Goode (supra) sets a framework for the conduct of interim proceedings.  The Court must identify the competing proposals, the issues in dispute and identify the agreed or uncontested relevant facts.  Some consideration must also be given to the matters in dispute as discussed above.

2. In Dieter (supra), the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.

3. Although the proceedings were commenced in September 2014 the court proceedings are still in their early stages. There is an outstanding property dispute between the parents and the Chapter 15 expert is to conduct his assessment in November 2015. In these circumstances, the interim orders currently being contemplated will last at the very least a matter of some months.

Parental responsibility

1. In addition to the orders with respect to the children’s living arrangements, orders are also sought in relation to parental responsibility.  The father seeks equal shared parental responsibility with the mother for the children and the mother seeks sole parental responsibility.

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child.

3. In Goode & Goode (supra), the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

4. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply:

   i)If there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)) or

   ii)When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

5. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act that it is in the best interests of the children for the parents to have equal shared parental responsibility for them as so many critical facts relating to their best interests are unknown or in dispute.

6. In considering the competing orders with respect to parental responsibility and in respect of the parenting, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. It does not seem to be in dispute between the parties that the children will benefit from having a meaningful relationship with both of their parents. Both parents propose orders which would have the children live with one parent and spend significant time with the other parent and thereby receive the benefit of having a meaningful relationship with each parent.

4. Each of the parents through submissions put on their behalf contends that there are risks of psychological harm in the other parent’s household, for B in particular. Each alleges that B is subjected to abuse by the other parent causing him to suffer serious psychological harm. The mother alleges that this harm is occasioned by the father manipulating B and engaging him in discussions about issues before the Court which cause him significant distress and the father alleges that the mother has been emotionally and physically abusive towards B.

5. For the reasons given earlier I am unable, at this stage, to make positive findings that B has been physically abused by the mother.

6. I am also unable to make positive findings that B has suffered serious psychological harm as envisaged in that consideration.  The father’s counsel placed great emphasis on this consideration and in particular B’s alleged threats to run away or self-harm.  It is submitted on behalf of the father that B has suffered emotional trauma as a result of poor state of the relationship between himself and the mother and that all children have been exposed to possible psychological harm as a result of the comments by the mother about the father and his partner as well as the mother’s emotional outbursts in the children’s presence.  It is also submitted that if the mother’s proposed interim orders are made there is a risk that B will place himself in harm by self-placing with his father and refusing to spend time with his mother.

7. Although B expressed some very negative thoughts about his mother to the Family Consultant, he did not suggest that he may attempt to run away from her.  Further, B’s threat to harm himself was expressed to the Family Consultant as “sometimes when mum pushes me, I feel like hurting myself”. He confirmed to the Family Consultant that he had not hurt himself to date. B did, however, describe a number of physical altercations that he has had with his mother including one occasion when he said his mother hit him on his face when in a car. B also told the Family Consultant that he had hit his mother a number of times. C also reported B and the mother regularly arguing and B hitting his mother and causing bruises. Both B and C report B apologising to his mother following these incidents.

8. The allegations made by the father of more serious physical assault appear to arise from incidents which are very much in dispute between the parties as do the more serious threats of self-harm said to have been made by B. The Family Consultant was of the opinion that B’s presentation during interview and observations “did not reflect the sense of desperation generally associated with children at risk of harming themselves”. She felt that the agreements that had been reached between the parents to date, including engaging in family therapy and assessment by a psychiatrist were the best possible plan to address this issue.

9. There is now some support for B through the engagement of the parents in family therapy regardless of which parent with whom he lives.

10. It is the mother’s position that the psychological harm to B arising from the father’s alleged manipulation of him gives rise to the greater concern at this stage which is best addressed by the orders proposed by her.  If it were to be ultimately found that the father’s manipulation of B was the cause of the damage to B’s relationship with his mother and this were to continue in the event that B lived with the father as he proposes, this would amount to serious psychological harm.

11. According to the family consultant, B is already showing some concerning behaviours and expressing some concerning thoughts. The family consultant said that B described “extreme intolerance” of his mother and at times appears to have attempted to justify his actions in hitting his mother. These attempts to justify his own actions while at the same time feeling badly about hitting her is in the family consultant’s opinion likely to be confusing to B and likely to promote feelings of anger and/or anxiety.

12. The younger children, C and D have both observed that B appears to like his father more than his mother and at times becomes very angry.

13. In my view, although the cause of B’s behaviour is unclear and will not be finally determined until the final hearing, there is greater risk of more severe psychological harm towards B if his relationship with his mother is further damaged than the risks of self-harm and running away identified by the father.

14. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. I will refer to those which are in my view relevant in this matter.

    Views expressed by the children and any factors underlying their views

15. B expressed a strong view to the Family Consultant of wishing to live with his father to the extent that he said that he would like to live with his father and never see his mother again.   It is submitted on behalf of the father that great weight should be attached to B’s views. While I am mindful that it is important that a child of 13 feels that he has been heard, for the reasons given I have some concerns regarding possible influence and manipulation by the father.  In these circumstances, I am of the view that it is not appropriate to attach significant weight to B’s views.

16. C said that he was happy with the current week-about arrangement but having regard to his age I attach little weight to his view. D, who is four, told the family consultant that he likes his mother’s house better because it is bigger. No weight will be attached to this view.

    The nature of the relationship of the children with each of their parents, and other significant persons

17. The children have been jointly raised by each of their parents and it is likely that they have a significant attachment to each of them.

18. Although B made very negative comments about his mother to the Family Consultant, in the course of informal observations, the Family Consultant said that B allowed his mother to kiss him on the cheek and appeared neither happy nor upset to be kissed but rather, “typical of a compliant adolescent who did not really want to be kissed”. B also described having had a good relationship with both parents prior to separation.

19. In the course of informal observations the Family Consultant observed C and D hug and kiss their mother.

20. In circumstances where I am unable to make factual findings and where there is no expert evidence I am unable to make any further findings about the nature of the relationship between the children and their mother.

21. Similarly, there is only limited evidence available about the relationship between each of the children and their father.  B told the Family Consultant that his father treats him “better” than his mother does and called his father “inspirational”.  D told the Family Consultant that he feels closer to his father because his father never shouts and lets them play.

22. Each of the children reported to the Family Consultant spending a significant amount of time with the father’s partner “Ms I” and at her home when in their father’s care.  C told the Family Consultant that “Ms I” generally makes them dinner and indicated that he likes her and her children but is not close to them.

    Decision making, spending time and communicating with the children

23. Both parents have equally cared for the children since separation, have had a significant role in decision making and have equally spent time with and communicated with the children.

    Maintenance of the children

24. It appears that each of the parents has maintained the children when they have been in their respective care.

    Likely effect of any change in the children’s circumstances, including the likely effect of separation from the other parent

25. It is submitted on behalf of the father that this is a significant factor and that it is likely that if B is required to live primarily with his mother he may harm himself, run away or self-place with his father.  For the reasons earlier given, I am not of the view that it is likely that B will act in accordance with these threats.

26. Given the significant involvement by the father in the care of the children since separation, it is likely that in the event that orders are made as sought by the mother, that the children will feel some sadness due to separation from their father.  Similarly, if the alternate orders sought by the father are made and all of the children live primarily with him, the children will feel some sadness about their separation from their mother.  C told the Family Consultant that he misses each parent when he is away from them.

    Practical difficulty and expense of children spending time with and communicating with a parent

27. There is no practical difficulty and expense associated with the children spending time with and communicating with the parent with whom they do not live under either of the parents’ proposals.

    Capacity of each parent to provide for the children’s needs

28. The father alleges that there are significant shortcomings in the mother’s parental capacity.  For the reason given, I am unable to make positive findings in this regard at this stage.

29. I am of the view that the recognition by the mother that the current arrangements are not in the best interests of the children demonstrates a capacity on her part to be attuned to the children’s needs.  Any arrangement whereby children have regular changeovers between parents who are in significant conflict and do not demonstrate good communication skills and flexibility raises concerns about whether the children’s needs are being appropriately met.

30. I have some concerns about the father’s lack of awareness of the potentially manipulative and undermining nature of his discussions with B about issues before the Court and that he appeared resistant to the Family Consultant to taking on feedback about how these actions may be harmful to B and the younger children.

31. In the absence of an expert report I am unable to make further findings in relation to each parent’s capacity.

    Any family violence involving the children or a member of children’s family

32. Having regard to the probabilities of the competing claims about family violence for the reasons given, there is a risk that the father has been the perpetrator of family violence against the mother though the extent of it and the impact upon the children at this stage is unknown.

33. I note that an ADVO was made for the protection of the mother against the father but the father says it was made on a “no admissions” basis and it has since expired.

Conclusion

1. In coming to a decision about which of the proposed interim orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, the primary consideration of the need to protect the children from harm is of great significance in this matter and particular weight has been attached to it.  Having regard to this and the other considerations I am of the view that it is in the best interests for the children for interim orders to be made as proposed by the mother.

1. Accordingly, the orders that I make are set out in forefront of these reasons.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2015.

Associate:

Date:  16 September 2015